Court Denies Innocent Infringement Defense To Teen For Sharing Music

from the reasonable? dept

You may recall a few years back that a teenager, Whitney Harper, who was getting sued by the record labels/RIAA for file sharing, claimed that the amount she should have to pay up should be less than the $750 statutory minimum, because she was an "innocent infringer," unaware that what she was doing in listening to music was against the law. In fact, she didn't even realize she was sharing files, but thought she was just listening to music, like radio. Surprisingly, the lower court actually agreed with her and said that $200 per song (for the 37 songs) was an appropriate amount. But, of course, the RIAA appealed, as (despite claims to the contrary in the Tenenbaum and Thomas-Rasset case) they need those huge potential amounts to use as a sledge hammer against file sharers. Unfortunately, an appeals court has overturned the lower court ruling, and said that the statutory minimum of $750 per infringement should apply -- saying that the innocent infringement defense isn't applicable because the CDs the music came on (which she never saw) had proper copyright notices.

As you may know, copyright law does allow for reduced statutory damages on innocent infringement, "where the infringer sustains the burden of proving . . . that [she] was not aware and had no reason to believe that . . . her acts constituted an infringement of copyright." Given the details of this case, that seemed to apply -- but the appeals court was having none of it. In the decision, it argues that the law says an innocent infringer defense cannot be applied (with one exception irrelevant to this case) if a proper copyright notice "appears on the published . . . phonorecords to which a defendant . . . had access."

The court the says that because copyright notices are found regularly on CDs, then Harper effectively "had access" to those recordings, at least enough to know they were covered by copyright. Not surprisingly, I find this argument to be quite troubling. If we assume it is accurate that Harper was using LimeWire as if it were a radio to listen to music, then how would she know that she was violating the copyright on the recordings at all? Would someone listening to the radio know? What about someone listening to Pandora or Spotify. Based on this ruling, anyone can be put at risk of much larger statutory damages for copyright if they simply don't know if the online streaming service they're using has properly cleared the copyrights. That does not seem like a conclusion that makes sense, or would have been intended by Congress. Did Congress really intend for each user to do the research before using any online music service to make sure those services had properly cleared the copyrights?

Filed Under: copyright, innocent infringement, statutory damages, whitney harper

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  1. identicon
    Rekrul, 27 Feb 2010 @ 4:40pm

    Re: How do they do it?

    I'm not overly naive, usually, but Limewire says it's all anonymous. So how the hell does the AA know what me and a guy in Detroit are doing?

    Because Limewire may be anonymous in that you don't have to enter your real name, but the internet is not anonymous. It needs IP addresses to function. Think of it this way; Can you call someone if you don't have their phone number? Can anyone call you if they don't have your phone number? If you want them to be able to reach you, you need to give them your phone number. Let's say that you walk into a public place and announce what your phone number is. Nobody there has any idea what your name is or where you live, so you're "anonymous". However if one of the people in that place thinks you're doing something illegal, they can get a court order to force the phone company to tell them who that number is registered to.

    IP addresses work the same way. When you download something, your computer "calls" the IP address of other users who have the file you want. As you download it, your copy of Limewire offers up a copy of that files to others, just as others offered it to you. Anyone can "call" your IP address and request a copy of that file. If it's a copyright file and the person requesting it happens to work for the music industry, they can track your IP address back to your ISP. They will then, through a series of legal loopholes, get a court order forcing your ISP to tell them who that IP address is registered to. At which point, you get a nasty surprise in the mail.

    ALL file sharing software works this way. BitTorrent, Kazaa, eDonkey2000, Direct Connect, etc.

    The only way to hide your IP address is to pay a monthly fee for a VPN service, which will then route all activity trhough other IP addresses so that the people on the other end have no way to see your IP address. Think of it like using 2-3 couriers in a row to deliver your messages, only the first one knows who you are.

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